50 So. 2d 408 | Ala. | 1951
This is an ejectment suit filed by Tommie Patterson and others, appellants, against Roy Downs and Pearlie Downs, appellees. The only question presented on this appeal is the correctness vel non of the ruling of the lower court in admitting in evidence certain proceedings in the Probate Court of Chilton County for revocation of an insanity finding and letters of guardianship. By reason of the ruling the plaintiffs in the lower court, appellants here, took a nonsuit. Hence this appeal.
On March 4, 1941 Ulysses Patterson filed a petition in the Probate Court of Chilton County to have Emma Patterson Murphy, his mother, declared of unsound mind. As a result of these proceedings a decree was rendered that Emma Patterson Murphy was a person of unsound mind and C. O. Jones was appointed as her guardian.
On October 9, 1942 Emma Patterson Murphy filed in the same court a petition for revocation of the insanity proceedings against her and for revocation of the letters of guardianship. The record of this proceeding, which was filed under § 16, Title 21, Code of 1940, does not disclose any citation *199 or notice served on Ulysses Patterson nor does it show citation upon the guardian C. O. Jones, although it does show an acceptance of notice by the guardian.
On October 9, 1942 pursuant to these latter proceedings the Probate Court of Chilton County decreed that Emma Patterson Murphy had been restored to sanity. On January 18, 1943 Emma Patterson Murphy executed a deed to the appellee and his wife purporting to convey the land in question involved in this case. It is stipulated and agreed that there was no change in the mental condition of Emma Patterson Murphy between the date of the decree finding her restored to sanity, October 9, 1942, and the date on which she executed the deed to the appellee and his wife, January 18, 1943.
Subsequent to the execution of the deed Emma Patterson Murphy died intestate and the appellants as some of her heirs at law have succeeded to such rights as the decedent may have had. Subsequent to the deed from Emma Patterson Murphy, Pearlie Downs, the wife of appellee, conveyed to appellee her interest in the land.
When the case came on for trial a jury was waived by the parties for this trial only. Appellee offered in evidence the official court file in the proceedings of October 9, 1942, containing all the documents read into that proceeding, including the decree of the probate court which declared Emma Patterson Murphy restored to sanity. The appellants objected on the grounds that the proceedings were void in that the record disclosed no citation served on Ulysses Patterson and further that it disclosed no citation served on C. O. Jones, the guardian, and further that the decree in the proceeding was void in that the record failed to show affirmatively that citations had been served either on said Ulysses Patterson or C. O. Jones. At the time both Ulysses Patterson and C. O. Jones were alive and resided in Chilton County, Alabama. The objections were overruled and the official court file was admitted in evidence as conclusive and res adjudicata of the mental condition of Emma Patterson Murphy as of October 9, 1942. The appellants excepted to this ruling, calling attention of the court to the fact that it was stipulated and agreed between the parties that the mental condition of Emma Patterson Murphy did not change between the date of the decree of October 9, 1942 and the date of the execution of the deed to appellees. By reason of the rulings a voluntary nonsuit was taken as aforesaid and from this ruling this appeal has been prosecuted.
It must be conceded that the attack here on the proceedings to revoke the insanity finding and the letters of guardianship is a collateral attack. Williams v. Overcast et al.,
It is argued with great earnestness that the proceedings under § 16 et seq., Title 21, Code of 1940, to revoke the finding of insanity and the letters of guardianship were in a court of general jurisdiction. The argument is based on the idea that in § 278, Title 13, Code of 1940, courts of probate are given original and general jurisdiction as to "the appointment and removal of guardians for minors and persons of unsound mind." But this position is contrary in principle to the decision of this court in Fowler v. Fowler, supra, where inquisition proceedings were had under § 9 et seq., Title *200
21, Code of 1940. There has been legislative adoption of the interpretation placed on these statutes because after this interpretation the statutes were carried into the code without change. Ex parte Thompson,
In Fowler v. Fowler, supra, it was conceded that § 9579, Code of 1923, now § 278, Title 13, Code of 1940, makes the court of probate a court of general jurisdiction in the appointment of guardians for persons of unsound mind. So assuming that this statute makes the probate court a court of general jurisdiction so far as the removal of guardians of persons of unsound mind is concerned, yet on the principle established in Fowler v. Fowler, supra, it was not the purpose of § 278, Title 13, Code of 1940, to convert the probate court into a court of general jurisdiction in the proceedings to determine the mental status of Emma Patterson Murphy when she sought to have the letters of guardianship revoked. In providing for these proceedings § 18, Title 21, Code of 1940 states that "like proceedings must be had as upon the original inquisition".
We conclude that the court in the proceedings here involved was acting as a court of limited and statutory jurisdiction. So it becomes necessary to see what is the result of this conclusion.
In Fowler v. Fowler,
We are not dealing with a situation as provided for in the latter part of § 18, Title 21, Code of 1940 where there is no contest of the allegations of the application and the court is satisfied with the truth thereof. Nor are we dealing with a situation provided for in § 20, Title 21, Code of 1940. *201 In Cockrill v. Cockrill, C.C., 79 F. 143, cited by the appellee, the statutes of Missouri, which were there involved, did not require any notice as is required here. And so in that case the court held that the want of notice at the worst was an irregularity which could not be taken advantage of in a collateral proceeding.
We think it clearly appears that even though the attack here is collateral, the proceedings show on their face that the court lacked jurisdiction and, therefore, its finding is void. In view of this conclusion as to want of notice to Ulysses Patterson, we find it unnecessary to consider the failure of the record to show citation on the guardian C. O. Jones. It results that the court was in error in admitting in evidence the proceedings in the probate court in which the finding of insanity of Emma Patterson Murphy was revoked and letters of guardianship revoked.
Reversed and remanded.
BROWN, FOSTER and LAWSON, JJ., concur.